PIL exam notes

Public international law vs Municipal law

PIL:

 Law is applied horizontally, as there all states are equal. There is no vertical hierarchy, as
states a lawmakers and Subjects
 PIL is decentralised. It has no central origin or no central collation of recognized laws. IL has
no government or parliament.
 There is no law making body in international law with the power to enact rules binding on all
states. General assembly of the UN can make recommendations to its members, however
the Security Council under section 25 can take decisions which are binding on matters which
threaten international peace.
 No power has executive authority in international law, execution of laws are dependent on
threats, sanctions or a co-operative process.
 Adjudicative bodies are limited to the consent of states, some recognized courts are the ICJ,
ICC etc…

PIL has no compulsory jurisdiction, countries must consent to the jurisdiction of the international
court.

Is international law really law?

A recognized legal system normally contains a law-making body (parliament) an executive authority
(president and government) and Judiciary (system of courts). International law does not contain
these institutions however it does contain features of a legal system in practice, much of the laws
are recognized universally to exist, even if in practice laws may be breached.

Pollok test:

 Is there a political economy?

 Is there recognition to by its members of settled rules?

Answer to both questions is yes, making international law, law but flawed.

Austin v Hart debate-

 No effective enforcement mechanisms

 No prevention or control mechanisms for IL to prevent atrocities
 Coincidence of conduct: If a state complies with IL it is done in their own self-interest
 IL is far removed from individuals as certain procedures are required to access international
tribunals.


Conclude: IL focuses on state interaction, regulation and the way that states treat their
citizens. One cannot compare domestic systems of law to IL, as certain features will not have
a direct correlation.
 IL is not a bunch of norms from which states can choose from at their whim – it is a system
of law.
Sources of PIL
Article 38 ICJ
1. The court whose function is to decide in accordance with international law disputes as are
submitted to it shall apply:

a) International conventions, whether general or particular, establishing rules recognized by

contesting states.

b) International custom, as evidence of a general practice accepting law.

c) The general principles of law recognized by civilized nations.

d) Subject to the provisions of article 59.

Hierarchy of sources

First theory of sources

There is no hierarchy between primary sources (S1 (a)-(c) of article 38 of the ICJ), but academic
opinion and judicial decisions are considered to be subsidiary.

Second theory of hierarchy

International conventions carry more weight as they are codified expressions of the will of the state.

Third theory of hierarchy

Sources should be weighted as their written in the order of article 38, with international conventions
carrying the most weight, then customs and then general principles of law.

Conflict between sources and norms

Norms are universal principles of IL such as Jus cogens.

Jus cogens are peremptory norms which no country can deviate from.

Norms such as jus cogens must be considered before sources. Norms are always at the top of the
hierarchy before sources.

Article 53 Vienna convention of law: “A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law.”

Article 64 VCLT: Emergence of a new peremptory norm of general international law (“jus cogens”)

“If a new peremptory norm of general international law emerges, any existing treaty which conflicts
with that norm becomes void and terminates.”

Customary international law is not the same is Jus cogens.

Principles of conflicts between norms and principles

1. Lex specialis- Special norms take precedent of general norms.

2. Lex posterior- Recent law takes precedent over older law.

Conflicting obligations- UN Charter: Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their obligations
under the present Charter shall prevail.

Treaty

Treaties are an international agreement between states in written form and are governed by
international law, whether embodied in a single instrument or in two or related instruments and
whatever its particular designation.

Types of treaties

 Legislative
 Constitutive
 Contractual

Formation of treaties 4 step process:

1. Consider national law to determine who has power to initiate a treaty agreement: Section 231 of
the Constitution (SA)

2. Negotiations between state representatives

3. Drafting of treaty

4. Adoption of treaty (Signature, ratification and accession)

Article 18 VCLT- A state is obliged to refrain from acts that defeat the purpose of the treaty.

Article 2 (1) (d), Article 19 ( c ) and Article 20(1) and Article 21- Reservations

Observance of treaties

1. Principal of free consent

2. Pacta sunt servanda (article 26)

3. A state cannot invoke a domestic law as a justification for failure to comply with a treaty. (Article
27)

4. Treaties are binding within the territory of a country, however this principal does not bar the
extra-territorial binding power of obligations. (Article 29)

Interpretation of treaties

1. Textual and ordinary meaning.

2. Teleological approach.

3. Intention of the parties.

Invalidity of treaties

1. Force (Article 52)

2. Breach of jus corgens.

Termination of treaties

 Material breach of treaty or fundamental change in circumstances terminate a treaty.

 Treaties continue indefinitely unless there is an express contrary provision.
 Principle of continuity- Treaties continue to be valid when there is a change in government,
however when the states experience a change in legal personality, there are two approaches
to treaties:
- Universal succession: The new state succeeds to all treaties
- Clean slate: The state concludes all treaties, rejects or accedes to some of the prior
treaties.

Customary international law

Customary international law is an international custom which evidences a general practice accepted
by states as law. (Article 38 (1) (b) ICJ)

Conduct element

Proof of a customary rule: Settled practice or USUS (Nicaragua and Continental shelf case)

Where is customary law found?

 State legislation
 Treaties
 Un resolutions
 Practice of international organs.

When would a practice qualify as a custom?

 Time frame of practice- IL is not clear on time frame needed for custom to firm. Depend on
circumstances of each case. ICJ confirmed that a short time frame would not invalidate a
custom (Continental shelf).
 Consistency: Constant and uniform usage- There must be no uncertainty in situations of
which the customs apply, and there must be no discrepancy between the cases (Asylum
case). There must be sufficient uniformity (General/widespread acceptance Anglo-Northen
fisheries case). There must be extensive and virtually uniform practice (Continental shelf)
Continental shelf- Secondary obligations of a treaty means that a practice is not uniform. If
there are exceptions to the obligations then custom is not uniform
Nicaragua- Practice does not need to be in rigorous conformity.
Mental element: opino juris
Opino juris- The state of being under a legal obligation to comply with an international law.
Proven by Statements of government, and resolutions of UN, EU and AU.
Gulf Maritime and NSCSC
 Soft law- General standards adopted at resolutions and conferences. These are guidelines
for states and are not binding.
Statehood
The status of being a state, attained by recognition by existing states and compliance with
statehood criteria.
Montevideo convention requirements of a State (Article 1)
a) Permanent population
b) Defined territory
c) Government
d) Capacity to enter into relations with other states.

Recognition of states
A distinction must be made between states and government. A government is not
permanent and does not have an impact on the International Legal Personality of the state.
What is recognition?
Recognition is the formal acknowledgement that an entity is a state (or government).
There is no legal duty to recognise an entity as a state, except in certain circumstances
(decolonisation).
Recognition and statehood.
 If the need for recognition is important, the Montevideo requirements become less stringent
and states will often recognise a state that does comply with all the requirements.
 Recognition is dependent on political considerations as opposed to legal factors.
- Taiwan broke away from China, and complies with all the criteria for statehood, but it is
not widely recognised as a state. Further China and USA will never recognise Taiwan in
the UN, as such they will not gain UN Membership
- Panama broke away from Colombia and USA immediately recognised Panama in order
to build the Panama Canal.

When a state is recognised, other states bear specific rights and obligations in relation to that state.

Recognition is also dependent on whether a state respects democracy, is peace-loving or whether

the state has breached a peremptory norm when it formed.

Theories that govern the recognition of states

Constitutive theory (subjective) (6 criticisms)

a) Recognition is an additional criteria for statehood.

b) Under this theory all 4 requirements of the Montecarlo Video Convention must be met together
with the recognition of the state.

State = 4 requirements + recognition

c) If the state is not recognised it will not be considered a state and therefore will have ILP.

Criticism:

 Creates a situation of partial statehood/personality/ unknown state effect.

 The state is a state according to MV convention, is not recognised by other states.
 It is unclear the number of states that need to recognise a state in order to meet the
recognition element.
 A non-recognised state can argue that it does not need to comply with IL obligations as
they are not a legal person in international law.
 Inconsistent with the principle of sovereign equality as it implies existing states are superior
to newly formed states as prior states must give recognition to satisfy their statehood.

Solution:

 Lauterpacht: A legal duty to recognise other states must be placed on existing states,
however current state practice will not permit this legal duty as states want political control
over states they recognise.

Declaratory theory (objective)

a) Recognition is not an additional requirement for statehood.

b) States only need to satisfy MV criteria.

Criticisms:

How can a state fulfil the last requirement of entering into relations with other states if other states
will not recognise it?

Judicial inquiry into the merits of both theories- S v Banda

 Declaratory theory favoured by most writers due to its objectivity.

 Criticisms: The judgement focused more on recognition of governments and not on states
 Recognition is important and cannot be ruled out.
Current practice

 Leans toward the declaratory theory, as one or two states can recognise a newly formed
states and therefore satisfy the 4th requirement.
 Recognition still plays a role in statehood and is influenced by political considerations.

Unilateral recognition

An individual state already accepted as a state recognises that an entity claiming to be a state meets
all the requirements of statehood and is therefore regarded as a state with rights and duties
attached to statehood.

 No rules prescribe unilateral recognition

 A state may be recognised by public declaration, or through the conduct of a state in relation
to another, however with the latter form intention to recognise a state must be proved.
Examples: South Africa and Rhodesia- SA continued diplomatic relations with Rhodesia
although it was not recognised by the international community. It was held diplomatic
relations did not imply Rhodesia as a state as it lacked intention to recognise.

States can set conditions on recognition:

Eg- Palestine was granted non-member observer state status by the UN.

Palestine not a state under declarative theory (Territory is undefined, no executive authority, and no
formal government).

Collective recognition and its effects

A group of states recognises the existence of a claimant state directly, by an act of recognition, or
indirectly through admission of the state into the organisation.

- Collective recognition is also influenced by whether the entity was formed legally or
illegally.

Collective recognition by the UN (article 3 and 4). Example South Sudan

Legal effect of UN Membership:

1. Constitutes powerful evidence of statehood as it presupposes statehood.

2. Once accepted as a member, the state is guaranteed state hood and other states cannot contest
the states validity of statehood.
UN members can still unilaterally refuse to recognise a state (Arab states and Israel)

Collective recognition by the EU

Declaration on the ‘Guidelines on the recognition of new states in Eastern Europe and in the soviet
union’ December 1991

- Respect for the provisions of the UN charter and the commitments subscribed to in the
final act of Helsinki and the charter of Paris, especially with regard to the rule of law,
democracy and human rights
- Guarantees for the rights of ethnic groups and minorities in accordance to the
framework of the CSCE
- Respect for the inviolability of all frontiers which can only be changed by peaceful
means and by common agreement.
- Acceptance of all relevant commitments with regard to disbarment and nuclear non-
proliferation as well as to security and regional stability,
- Commitment to settle by agreement.

Collective recognition by the AU: Article 9, 29, 30 and 31

Legal effect of Collective recognition

1. Confers statehood to a new state in IL.

2. Recognises the state as a subject of IL.

3. Shows that other states are willing to enter into political relations with the state.

4. May imply that a state complies with MV requirements

5. Collective recognition is not binding on individual states.

6. Other state in the organisation are stooped from denying the statehood of the state.

Collective non-recognition and its legal effect

1. The entity breached IL or peremptory norms.

Example: TBVC states were not recognised by the UN on the basis of violation of peremptory norms
of self-determination and systematic racial discrimination.

2. Non- recognition can be used as a means of sanction.

3. Can also be used as a means of compliance with IL,

Is it possible to withdraw recognition in relation to states?

 States are stooped from withdrawing recognition of other states. However the same does
not apply for governments.
 However withdrawal remains a possibility, yet not seen in practice.
 Difficult to withdraw a failed state (Somalia). Failed states can be placed under trusteeship
or can be given assistance by other states in a state building operation.

Recognition of governments

DEFINITION: Recognition is the formal acknowledgement that an entity is a government of a state.

General rule- Changes in government do not affect the ILP of the state or its rights and obligations.

Two ways in which government takes power:

1. Constitutional means – IL rights and obligations as well as diplomatic relations are not affected;
therefore the question of recognition does not arise.

2. Unconstitutional means – Does the government have IL rights and obligations? New government
may not have effective control over population, be unwilling to comply with IL obligations, many
human rights violations. Is this government a true representation of the state and should it be
recognised?

Governments in exile- Still a legitimate government and can be recognised

Legitimating role of recognition

Recognition of a government by another state implies that the means by which that government
came to power was legitimate. Therefore recognition can imply a political endorsement of illegal
governments.

UK Policy.

 Gov is distinct from the state, UK only recognises states.

 Moved to the informal recognition of governments and states.

5 factors of recognition

a) Political considerations

b) Effective control doctrine

c) Popular support- Bulk of population supports government, does not mean government must be
elected or democratic.

d) Stability

e) Ability to fulfil its IL obligations

Forms of recognition of government and effect.

De facto: The government is the factual government in place at the time.

De facto results in no diplomatic relations between states and the government cannot claim assets
from other states.

De Jure: The government is the legal and legitimate government in law. Implies recognition.

Legal effect of de Jure: it is difficult to withdraw de jure recognition but easy to withdraw de facto.

Liberia v Bickford- interim government had standing with regards to the assets held by Bickford,
lawyer of the previous president, on the basis that efficient control is not sufficient for the control of
legitimacy of a government.

Decolonisation, self-determination secession and statehood

Decolonisation- undoing of colonisation.

UN Charter: Article 73e and 76b- implicit recognition of colonisation.

Article 1(2) and 55- recognises the principle of self-determination of peoples.

1960 Declaration (Res 1514 (XV)) instrumental in recognising the right to self-determination and the
subsequent decolonisation.

Right to self determination

Self-determination- a right for a people to exercise their political, economic and social status.

Two types:

1. Internal exercising of the right entails a change in government or political integration.

2. External self-determination results in independence.

What is the nature of the right?

Protected under- Article 1(2) and 55 UN charter, Article 1 ICCPR, Article 1 of ICESCR, Article 20 of
the African charter.
Circumstances of exercising the right

 The right was used in the colonial context only, the external manifestation cannot be applied
in post-colonial contexts.
 ICJ limited right to colonial contexts only.
 Can be practiced today, only within existing state boundaries.
 Internal manifestation respects the principle of territorial integrity.

Section 235 of SA Constitution- Allows for the right of self-determination of any community sharing
a common cultural and language heritage, within a territorial entity in the republic or in any other
way determined by national legislation.

Jurisdiction

Jurisdiction is the authority of the state to exercise governmental functions through executive,
legislative and judicial action, and judicial decrees of persons and property. The exercise of
jurisdiction is normally limited to the territory of a state however a state may exercise extra-
territorial jurisdiction in limited circumstances.

The 3 forms of jurisdiction:

1. Legislative

2. Enforcement

3. Judicial

Domestic jurisdiction in UN Charter- Article 2(7)- Prohibits UN from intervening in matters which
are within domestic jurisdiction of any state.

General principles

Lotus case established the 3 general rules:

1. A state may not exercise its power in any form in the territory of another state unless there is a
permissive rule to the contrary.

2. International law does not prohibit a state from exercising jurisdiction in its own territory, in
respect of acts which have taken place outside its territory. States have a wide discretion to extend
the application of their laws to persons, property and acts outside their territory, unless an IL
prohibits such extension.

3. The territoriality of criminal law is not an absolute principle in international law.

Criticisms of lotus principle:

 Extends the jurisdiction of states to very wide parameters.

 Does not extend jurisdiction as most countries require some connection between the act
and the state before they will exercise jurisdiction.

High seas convention: Article 11 (1)

This convention effectively overturns the Lotus principle.

- Only the flag state or the state of which the alleged offender is a national has
jurisdiction, over incidents which occurred on the high seas. (S v Basson)

Jurisdictional principles

Territoriality

A state can exercise jurisdiction over all crimes occur within its territory over all persons responsible
for such crimes whatever their nationality.

- Territory includes land, waters and airspace.

Nkonodo: Court will not exercise jurisdiction over a person wanted for a non-political crime
committed in SA who is on board a ship or aircraft forced to enter SA in distress. That person must
be brought to an SA court through legal means.

Subjective territoriality

 A state may exercise jurisdiction where the crime is commenced within its territory and
completed in another state.
 Example: A man stands in SA and shoots a person dead across the border in Namibia.

Objective territoriality

 A state may exercise jurisdiction where the crime is commenced in a foreign state and
completed within its territory.
 Therefore both countries under this example have jurisdiction. Both SA and Namibia have
jurisdiction under objective territoriality.

“Effects” principle

An extension of objective territoriality principle. A state can exercise jurisdiction if it felt or

experienced the effect of that crime. S v Mharapara
Protection of the state (protective or security principle)

A state may exercise jurisdiction over aliens who have committed acts abroad that are considered
prejudicial to its safety and security. Limited mostly to political offences, economic offences and
immigration. R v Neuman, Joyce v Director of Public Prosecutions

Nationality (active nationality)

A state may exercise jurisdiction over its own citizen, who committed a crime in another country.

Treason

Treason is an exception to this rule. A state can exercise jurisdiction over offenders no matter where
the crime is committed. This is because prosecution of the offender is in the interest of the state.

Implementation of the Rome Statute of the ICC Act Section 4 (3) (a) and (b)

Passive personality

State may exercise jurisdiction over a person who commits an offence abroad which harms one of its
own nationals. (The victim is the national and the perpetrator is an alien) United States v Yunis.

Universal jurisdiction – ICC Act: Section 4 (3)(c), Geneva convention act s 6(2) and 7(1).

Universal jurisdiction is permissive and not mandatory.

International crimes- Crimes which threaten the good order of the international community as a
whole.

Controversy

Universal jurisdiction is controversial for many reasons:

 Trials in absentia (Arrest warrant case)

 Scope of crimes (no certainty as to the limit of what crimes qualify for UJ)
 Resources to investigate crimes
 Amnesty
 Breach of state sovereignty

Cases regarding UJ: Pinochet and Eichmann case

Conditional vs Absolute

Conditional- State may only exercise jurisdiction where the accused is present within the
territory of the state.
 Absolute- Exercising jurisdiction over a person not within their territory (SALC case) .

The United Nations 1945

Purpose of UN Article 1

1. Maintain peace and security and to that end to take effective collective measures for the
prevention and removal of threats to the peace.

2. To develop friendly relations among nations based on principles of equal rights and self-
determination of people.

3. To achieve international co-operation in solving international problems of economic, social

culture or humanitarian character.

4. To be a centre for harmonizing the action of nations in the attainment of these common ends.

Article 2: the principles of the UN

1. Sovereign equality

2. All members, in order to ensure to all of them the rights and benefits resulting from membership,
shall fulfil in good faith the obligations assumed by them in accordance with the current charter.

3. All members to settle their disputes by peaceful means

4. All members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with
the purposes of the UN.

5. All members shall give UN assistance in any action it takes in accordance with the present charter,
and shall refrain from giving assistance any state against which the UN is taking action against.

6. Organisation shall ensure non-member states shall act in accordance with the UN principles for
the purposes of maintaining peace.

7. Nothing in the present charter shall authorize the UN to intervene in matters which are essentially
with in domestic jurisdiction of any state or shall require the members to submit such matters to
settlement under the present charter.

UN structure

General Assembly- Main deliberative, policymaking and representative organ, secondary

responsibility- maintenance of international peace, meets annually and comprises of 193 countries.
Security Council- Executive body of the UN. Primary responsible for international peace
maintenance, consist of 15 members (5 permanent members) and 10 non- permanent members
elected by GA.

Economic and social council- 54 members

International court of justice- Main judicial organ, 15 full time judges, only states can be parties to
cases.

Trusteeship council- suspended in 1994

Maintenance of International peace and security

Wh